This is
an appeal by the State of Alabama from an order of the
Jefferson Circuit Court granting postconviction relief to
Mack Dailey pursuant to Rule 32, Ala. R. Crim. P.
Dailey's petition attacked his November 5, 1997,
conviction for capital murder, a violation of §
13A-5-40(a)(2), Ala. Code 1975 (murder committed during a
first-degree robbery), and his sentence to life in prison
without the possibility of parole. The offense was committed
when Dailey was 15 years old. On August 28, 1998, this Court
affirmed Dailey's conviction and sentence. See Dailey
v. State (No. CR-97-0375), 741 So.2d 482 (Ala.Crim.App.
1998)(table). On November 10, 1998, this Court issued a
certificate of judgment.

On June
4, 2013, Dailey filed the instant Rule 32 petition, his
first, in which he argued that because he was 15 years old at
the time he committed the capital murder, the recent holding
of the Supreme Court of the United States in Miller v.
Alabama, __ U.S. __,132 S.Ct. 2455, 183 L.Ed.2d 407
(2012), rendered his sentence unconstitutional and entitled
him to a new sentencing hearing. On June 28, 2013, the State
filed a motion to dismiss in which it argued that
Dailey's petition was procedurally barred under Rules
32.2(a)(3) and 32.2(a)(5), Ala. R. Crim. P., and that the
claim was without merit because the holding in Miller is not
retroactive. On July 1, 2013, Dailey filed a response to the
State's motion in which he argued that the holding in
Miller is retroactive and that his claim is not subject to
the procedural bars raised by the State. On July 4, 2013,
Dailey filed an amended petition arguing that, when read in
conjunction with Atkins v. Virginia,536 U.S. 304,
122 S.Ct. 2242, 153 L.Ed.2d 335 (2002),[1] the holding in
Miller was clearly meant to have retroactive application and
that his petition was not subject to procedural bars. On July
17, 2013, the State filed a motion to dismiss the amended
petition in which it again argued that Dailey's claims
were procedurally barred by Rules 32.2(a)(3) and 32.2(a)(5),
and that the holding in Miller was not

Page 981

retroactive. On July 24, 2013, Dailey filed a response to the
State's motion, again arguing that the holding in Miller,
when read in conjunction with Atkins, had retroactive
application and that his petition was not subject to
procedural bars. On October 29, 2013, a hearing was held on
Dailey's petition, at which counsel for both sides
presented arguments regarding the applicability of Miller. On
February 28, 2014, the circuit court issued an order granting
Dailey a new sentencing hearing pursuant to the holding in
Miller. The State now appeals.

On
appeal, the State reasserts the arguments raised below and
cites this Court's opinion in Williams v. State,
[Ms. CR-12-1862, April 4, 2014] 183 So.3d 198 (Ala.Crim.App.
2014), as support for reversing the circuit court's
judgment granting the relief requested in Dailey's Rule
32 petition.

" In Miller, the Supreme Court of the United States held
that the Eighth Amendment forbids 'a sentencing scheme
that mandates life in prison without possibility of parole
for juvenile offenders.' Miller, U.S. at __, 132
S.Ct. at 2469. Rather, the Supreme Court said, juvenile
offenders are entitled to individualized sentencing, where
the sentencer takes 'into account how children are
different, and how those differences counsel against
irrevocably sentencing them to a lifetime in prison.' Id.

" In Williams v. State, [Ms. CR-12-1862, April
4, 2014] 183 So.3d 198 (Ala.Crim.App. 2014), this Court held
that claims based on Miller are nonjurisdictional claims
properly raised in a collateral proceeding under Rule
32.1(a), Ala. R. Crim. P. __ So.3d at __. Further, this Court
held that, under the framework established in Teague v.
Lane,489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334
(1989), the rule announced in Miller is a new rule, and that
it is not a substantive rule nor is it a 'watershed'
procedural rule. __ So.3d at __. As a result, this Court held
that Miller is not subject to retroactive application. __
So.3d at __.

" '" A judge abuses his discretion only when
his decision is based on an erroneous conclusion of law or
where the record contains no evidence on which he rationally
could have based his decision." Miller v.
State,63 So.3d 676, 697 (Ala.Crim.App. 2010).'
State v. Thomas,137 So.3d 933, 937 (Ala.Crim.App.
2012). Here, the granting of Boyd's petition by the
circuit court was based on an erroneous conclusion of law
because Miller does not apply to cases, like Boyd's, on
collateral review. See Williams, __ So.3d __at __."

Boyd, __ So.3d __at __.

The
circuit court abused its discretion in granting Dailey's
petition, and its judgment is therefore due to be reversed.
Accordingly, the judgment of the circuit court is reversed
and this cause is remanded for proceedings consistent with
this opinion.

REVERSED
AND REMANDED.

Windom,
P.J., and Kellum, Burke, and Joiner, JJ., concur.

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Notes:

[1]In Atkins, the United State Supreme Court
held that it was a violation of the Eighth Amendment to the
United States Constitution to execute a mentally retarded
person.

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